ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009995

Parties:

	Complainant	Respondent
Anonymised Parties	A General Operative	A commercial plastic wrapping company

Representatives

Vadim Karpenko

firstnational.consulting@gmail.com

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00013049-001	09/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013049-002	09/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000	CA-00013049-003	09/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00013049-004	09/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013049-005	09/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00013049-006	09/08/2017

Date of Adjudication Hearing: 21/11/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention (or contraventions) by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred many Complaints (under Schedule 5) for consideration:

Pursuant to Regulation 6 of SI no. 488/2000 European Communities (Protection of Employment) Regulations, 2000 the Complainant has presented a Complaint that the employer herein has contravened Section 9 and/or 10 of the Protection of Employment Act, 1977 wherein certain obligations are imposed on Employers in collective Redundancy situations. If this complaint is deemed to be well founded I can require the Employer to comply and/or I can direct that the employer pay compensation as is just and equitable having regard to all the circumstances but not exceeding 4 weeks’ remuneration.

Pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 the Complainant has presented a complaint that his Employer has not complied with Section 3 of the Act in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain (particularised) Terms of the employment (as specified in Section 3 of the 1994 Act).

In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four week’s remuneration such that is just and equitable in all the circumstances.

In particular, the Complainant herein has further referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. Section 5 provides that an Employer shall not be entitled to make any deduction from an Employees remuneration (save as where might be expressly provided under law). Pursuant to Section 6 of the said 1991 Act, in circumstances where the complaint is deemed to be well founded, compensation in the amount so specified may be awarded.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended) the Complainant has presented a complaint of contravention of certain working time obligations imposed on the Employer which may be adjudicated upon.

A decision of an adjudication officer under the Organisation of Working Time Act 1997 shall do one or more of the following:

Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years’ remuneration.

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as amended) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered during the hearing.

Summary of Complainant’s Case:

At the outset, the Complainant withdrew the claim he has made under the Unfair Dismissals legislation. This is done without prejudice to his entitlement to bring fresh proceedings under this legislation in due course. It is noted that the Complainant’s employment terminated on the 22nd day of July 2017 and the first six-month period post termination has not expired.

I heard this complainant give evidence with respect to his Redundancy. However, I now note that the Complainant had not sought a Redundancy payment in his Workplace Relations Complaint Form having instead looked for relief under the Regulation 6 of SI no. 488/2000 European Communities (Protection of Employment) Regulations, 2000.

The Complainant is advised to refresh his application under the Redundancy legislation as soon as may be practicable. I cannot make an Order under the Redundancy Payments Acts where this has not been notified to the Employer in advance. As this Redundancy took place in August 2017 the Complainant is within time to bring a new claim.

The Complainant had been working for the Respondent since 1st of November 2009. The Company had previously traded under the name C Limited and then in October 2016 the Employment had transferred into the Respondent name. This did not affect Service or other applicable terms and conditions. The Complainant was a machinist or a General Operative. There was a workforce of about 30 people. In July 2017, the Complainant along with his 20 or 30 co-workers was notified that there a loss of work to the company and consequently no work available to the workforce. In early August, the workforce was told that redundancies were needed and the complainant opted to take voluntary Redundancy. This would be on the basis of Statutory Redundancy only. The Company indicated an intention to abide by its obligations under Section 9 and/or 10 of the Protection of Employment Act, 1977 (concerning collective Redundancies). The Company never facilitated the Complainant in any way. The Complainant has therefore made a complaint under Regulation 6 of SI no. 488/2000 European Communities (Protection of Employment) Regulations, 2000.

The Complainant received a final two payslips dated the 30th of July 2017 for the amount of €214.83 and the 16th of July for the amount of €562.11. However, these amounts were not in fact paid into the Complainant’s account. The Complainant makes a Payment of Wages claim in respect of these unlawful deductions per Section 5 of the Payment of Wages Act, 1991.

The Complainant had never received a Contract of Employment and was not aware of his terms and conditions of Employment. The Respondent Employer appears to have made no effort to provide its workforce with any detail with respect to the contractual relationship. In these circumstances the Complainant brings a claim under Terms of Employment (Information) Act, 1994.

The Complainant brought two claims under the the Organisation of Working Time Act 1997. In particular, the Complainant says his annual leave entitlements as set out in Section 19 were not complied with. In addition, the Complainant says his entitlements with respect to Public Holidays were not observed pursuant to Section 21 of the 1997 Act.

The Complainant’s gross weekly wage was €472.00.

Summary of Respondent’s Case:

The Respondent did not attend. I am satisfied that all correspondence has been directed to the correct address and the Respondent’s non-attendance remains unexplained.

Findings and Conclusions:

I am satisfied that the complainant worked for a period of nearly 7 years with the Respondent Company. The company appears to have gotten into financial difficulties and indicated that it was making a large portion of the workforce redundant. The Employer did not follow through on its commitments or obligations in this regard.

The Employer never provided the Complainant with a Statement of the terms of the Employment or with a Contract of Employment.

The Complainant withheld final remunerative payments to be made and failed to observe its own obligations concerning Organisation of working time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Pursuant to Regulation 6 of SI no. 488/2000 European Communities (Protection of Employment) Regulations, 2000 I find the complaint well founded and I can require the Employer to pay compensation €800.00 as is just and equitable having regard to all the circumstances.

Pursuant to the Terms of Employment (Information) Act 1994 I consider the complaint to be well founded, and I direct a payment of compensation of €800.00 as being just and equitable in all the circumstances.

I agree that there has been an unlawful deduction made under the Section 5 of the Payment of Wages Act, 1991 and I award the sum of €700.00 compensation pursuant to the Act.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended) I accept that the Employer herein has failed to comply with two separate section of the Act I accordingly award

the sum of €1,550.00 compensation in respect of Statutory breaches of Annual Leave entitlements

and a further €78.00 compensation in respect of Statutory breaches of Public Holiday entitlements.

The above awards may be subject to lawful deductions.

The claim under Section 8 (1)(a) of the Unfair Dismissals Act of 1977 has been withdrawn

Dated: 28th March 2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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